Opinion of Advocate General Lenz delivered on 24 March 1994

1 Original language: German.

2 Regulation (EEC) No 2303/87 of 30 July 1987 (OJ 1987 L 209, p. 56).

3 Regulation (EEC) No 3205/87 of 27 October 1987 (OJ 1987 L 306. p. 7).

4 Regulation (EEC) No 3865/87 of 22 December 1987 (OJ 1987 L 363, p. 40).

5 Regulation (EEC) No 158/88 of 20 January 1988 (OJ 1988 L 18, p. 12).

6 Regulation (EEC) No 717/88 of 18 March 1988 (OJ 1988 L 74, p. 37).

7 Regulation (EEC) No 1792/83 of 24 June 1988 (OJ 1988 L 158, p. 24).

8 Regulation (EEC) No 2882/88 of 19 September 1988 (OJ 1988 L 260, p. 37).

9 OJ 1975 L 282, p. 77.

10 Before 1 January 1988, the Explanatory Notes to the CCCN (Customs Cooperation Council Nomenclature) applied. Since the introduction of the Combined Nomenclature on 1 January 1988, the Explanatory Notes to the Combined Nomenclature have applied. Both texts accord with each other for the relevant period on the question at issue here.

11 Sec the final part of paragraph 9, above.

12 The problem is solved by the current regulation on the marketing of poultrymcat. Council Regulation (EEC) No 1906/90 of 26 June 1990 (OJ 1990 L 173, p. 1) laid down marketing standards for poultry. Detailed rules for implementing that regulation were laid down by Commission Regulation (EEC) No 1538/91 of 5 June 1991 (OJ 1991 L 143, p. 11). In Article l(2)(a) a half is defined as half of the carcase, obtained by a longitudinal cut in a plane along the sternum and the backbone. A quarter is a half divided by a transversal cut (Article l(2)(b))- Those provisions were, however, enacted only after the period in question here and cannot therefore be taken into consideration (sec paragraph 13, below).

13 See footnote 11, above.

14 See Commission Regulation (EC) No 3567/93 of 21 December 1993 amending Regulation No 3846/87 (OJ 1993 L 327, p. 1).

15 Judgment in Case 327/82 Ekro v Proditktschap voor Vee en Vlees [1984] ECR 107, paragraph 22.

16 Sec S. Scholtyssek: Geflugel (Poultry), Stuttgart, 1987, p. 91 (with schematic illustrations). This work was kindly made available to me by the Lycée Technique Agricole in Ettelbruck.

17 I use that expression here (without any claim to technical accuracy) to denote a leg cut off at the joints.

18 If necessary, the calculation can be made in accordance with the average ratio between their commercial value. Those coefficients arc laid down by Commission Regulation (EEC) No 3011/79 of 20 December 1979 (OJ 1979 L 337, p. 65).

19 Second paragraph of Article 2 of Council Regulation (EEC) No 2779/75 of 29 October 1975 laying down general rules for granting export refunds on poultrymeat and criteria for fixing the amount of such refunds (OJ 1975 L 282, p. 90).

20 It may be pointed out here that the Commission's representative took the view at the hearing that the products exported by Voogd were intentionally cut so as to include a back portion.

21 See paragraph 14 , above.

22 Ekro (cited in footnote 14, above) paragraph 11.

23 Ekro (cited in footnote 14, above) paragraph 13.

24 Ekro (cited in footnote 14, above) paragraph 15.

25 See footnote 14.

26 Ekro (cited in footnote 14, above) paragraph 20.

27 The words quoted arc taken from the 1987 version of the Common Customs Tariff, as set out in Council Regulation (EEC) No 3618/86 of 24 November 1986 (OJ 1986 L 345, p. 1).

28 Ekro (cited in footnote 14, above) paragraph 24.

29 It should be reiterated here that the determination of the exact anatomical boundaries of a leg for this purpose is a matter for the national court (see paragraph 1S, above).

30 Reference should also be made to General Rule for the interpretation of the Combined Nomenclature A 3c: When goods cannot be classified by reference to...3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

31 In respect of the last-mentioned tariff heading, questions 2.2 and 2.3 of the reference merely allude to point 1.1(c) of the questions referred and thereby) by implication, to Regulations Nos 1151/87 and 2800/87. One may, nevertheless, assume that the national court also had the corresponding tariff heading used by Regulation No 3846/87 in mind. Since it may well have been an oversight, which is in no way surprising in view of the scope of the questions referred, I will refer in my exposition to the last-mentioned regulation where appropriate. In any event, there is no distinction in the subject-matter.

32 See footnote 11, above.

33 See footnote 13, above.

34 See paragraph 18, above.